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Updating the Way 'Parent' is Defined in New York Law

Melanie Lazarus, St. John's University School of Law Class of 2012, is the author of the ninth article in a ten part series from the staffers of the Journal of Civil Rights and Economic Development under the direction of Professor Leonard Baynes. She writes on the need for New York to update the way it defines "parent" for custodial and childcare purposes...

Undoubtedly, there are people on both sides of the political spectrum who saw last summer's decision in the New York case Debra H. v. Janice R as a victory. However, spinning the Court of Appeals decision as a victory or defeat, or anything other than an opportunity to discuss how we define "parent" in practice for the purpose of determining rights and obligations is shortsighted.

The case involved a woman petitioning for visitation with the child she raised with her lesbian partner, the child's biological mother, from the time he was born until the couple's relationship ended two-and-a-half years later. The Court of Appeals ruled that second-parent adoption, an option that was blocked by the biological parent in this case, represented sufficient protection in situations like this and, as such, there was no reason to explore alternative ways to define "parent" for the purpose of custody and visitation laws in New York. Those that support laws such as the federal Defense of Marriage Act (DOMA), and that have continuously rallied against same-sex marriage and civil unions in New York, spun the court's refusal to expand the definition of parent for the purpose of custody and visitation as a confirmation of "traditional family values." Conversely, some argued that the court's holding that Debra H. had standing to seek visitation with M.R., Janice H.'s biological child conceived during the couple's relationship, because of comity for the couple's Vermont civil union, was a step in the right direction, as it tended towards a more formal recognition of same-sex relationships in New York. Given the recent legalization of same-sex marriage in New York state, the latter interpretation seems to be more in line with the cultural climate of the state.

However, regardless of the recent changes to New York law, this case still provides a valuable opportunity to discuss the person that had the most to lose, the child. However you define your own sexuality, or wherever you fall on the spectrum regarding other peoples' freedom to define their sexuality, the New York court's reaffirmation of the 19-year-old precedent set in Alison D. v. Virginia M., which defined parent very narrowly according to Domestic Relations Law § 70, could have an impact on you. This is not about homosexuality or heterosexuality; it is a chance to have a discussion about defining parenthood in a way that awards the appropriate people their requisite rights, and demands that the correct people fulfill their concurrent obligations. In fact, because the court stated outright that same-sex couples could, and should, take advantage of second parent adoption laws, the decision should not be seen as an intentional barrier to same-sex parenthood specifically. Issues of legal status for a non-biological, non-adoptive same-sex parents, where the biological parent would not consent to adoption, are absolutely no different than the issues that might be confronted by a stepparent that has been unable to adopt his or her stepchildren.

What we should be talking about, for M.R. and every other child like him, is how we want to define parenthood. Currently, only biological and adoptive parents have a right to the care and custody of a child in New York. However, children do not think of parents as "mom" or "dad" because of a birth certificate, adoption certificate or DNA test, and neither should the court.

To varying degrees, other states allow custody or visitation standing to be determined by the child and the possible parents' relationship (de facto/psychological parents) or by a voluntary assumption of parental duties (in loco parentis). These statutes are fraught with their own problems. De facto parent status is very discretionary and leads to inconsistent results. In loco parentis involves a personal choice to take on parental duties where legally none would otherwise exist and, therefore, ceases at the voluntary cessation of the performance of these duties. Additionally, both statuses exist in a limbo where the "second" parent may be considered equal to the biological or adoptive parent for some purposes and less than equal for others.

What New York needs is for lawmakers and judges to remember why the space inside a parent's arms is a place of safety for children. They need to think back to what it was that their parents taught them and did for them that bestowed upon their parents a higher status than everyone else in their lives. They need to think about what they have done for their own children that they would do for no other. They need to sit down and come up with a list of things that make a parent "mommy" or "daddy" in a child's eyes. Then they need to think about things beyond a child's comprehension, such as planning for the child before and during his or her life, and they need to codify all of these things as factors a judge should consider when determining whether someone should have parental status. Too much discretion is always risky, but this is too important and too emotional an issue to be handled in the sterile, cold way it is currently dealt with.

Melanie Lazarus is the Executive Notes and Comments Editor for the Journal of Civil Rights and Economic Development. She interned at New York City's Administration for Children's Services and was a SJU Law Summer Public Interest Fellow in 2010 and 2011. Lazarus is also currently President of the Public Interest Committee.

Suggested citation: Melanie Lazarus, Updating the Way Parent is Defined in New York Law, JURIST - Dateline, Oct. 17, 2011, http://jurist.org/dateline/2011/08/melanie-lazarus-defining-parent.php.

This article was prepared for publication by Megan McKee, the head of JURIST's student commentary service. Please direct any questions or comments to her at studentcommentary@jurist.org

Opinions expressed in JURIST Commentary are the sole responsibility of the author and do not necessarily reflect the views of JURIST's editors, staff, donors or the University of Pittsburgh.

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